Chessman v. Hillhouse, Sheriff , 53 Nev. 21 ( 1930 )

Examination of the papers constituting the so-called record on appeal will disclose the fact that the same is composed solely of certified copies of the pleadings on file in the district court, together with a certified copy of the minute order from which the present appeal is taken. This fails to meet the requirements of sec. 414 of the civil practice act (sec. 5356 Rev. Laws, 1912), inasmuch as the so-called record on appeal does not contain anything to show what proceedings were had before the lower court upon the hearing of the order to show cause. There is nothing to show what papers were used upon the hearing; there is nothing to show what testimony or other evidence, if any, was before the lower court in support of, or against, the granting of a permanent injunction; consequently, this court on appeal is without any record from which to determine whether or not the lower court heard any testimony. This being the case, appellant's statements to the effect that no testimony, evidence or other proof was presented are without foundation in the record.

In the absence of a statement or bill of exceptions, the appellate court may only consider the judgment roll alone, and counsel is not permitted to go beyond the papers which are sent up on appeal. Werner v. Babcock, 116 P. 357; McCausland v. Lamb,7 Nev. 238; Neil v. Daniel, 4 Nev. 436.

OPINION This is a suit to enjoin a sale under an execution issued against a third party who has no interest of record in the real estate sought to be sold, upon the theory that such sale would cast a cloud upon the title of plaintiff, who alleges that he is the sole owner of the property.

Upon the filing and reading of the verified complaint, the court below entered an order directing the defendant to show cause why an injunction should not issue. On the day of the hearing the court entered an order, which, omitting the formal portions thereof, reads as follows: "The court being fully advised in the premises, ordered that the relief prayed for be not granted, and that the motion for a temporary restraining order be, and the same is denied." It was from this order that an appeal was taken.

Counsel for respondents contend that the judgment must be affirmed, for the reason that the so-called record on appeal is insufficient to justify this court in reversing the judgment.

The record which was filed was prepared, as stated by counsel for appellant, pursuant to section 414 of the civil practice act, section 5356, Rev. Laws.

This court has repeatedly held that the section mentioned has been repealed and is no longer of force and effect. Some of the decisions so holding are Water Co. v. Belmont Dev. Co., 49 Nev. 172,241 P. 1079; Nevada First Nat. Bank v. Lamb, 51 Nev. 158,271 P. 693.

In view of the fact that the section pursuant to which the so-called transcript was prepared has been repealed, such transcript cannot be considered.

Counsel for respondents insist that the so-called record is insufficient to justify the reversal of the order, even if the section mentioned were still in force. This contention is based upon the fact that it does not appear from the certificate of the clerk that the so-called record is full and complete, as contemplated by the section.

For a full understanding of the situation on the day of the hearing, the respondents filed separate demurrers to the complaint. Counsel for appellant contends that the hearing was had upon them alone, whereas counsel for respondents contend that the matter was not considered upon the demurrers, but upon proof, and, there being no bill of exceptions in the record, the order must be affirmed. While it is immaterial, we may observe that the order does not indicate a ruling upon the demurrers.

From a reading of the section in question, if it were still in force, it is clear that it must appear from the certificate of the clerk that all of the papers, affidavits, and evidence used upon the hearing before the lower court are in the record. There being no such showing in the certificate, the record is not such as would justify a reversal of the judgment. Lady Bryan Gold Silver M. Co. v. Lady Bryan M. Co., 4 Nev. 414; Thompson v. Reno Sav. Bank, 19 Nev. 293, 9 P. 883.

There being no record before the court which it can consider, the judgment must be affirmed.

It is so ordered.